Vt. R. Civ. P. 7
Vt. R. Civ. P. 7
Reporter's Notes-2018 Amendment
Rule 7(b)(4) is amended to extend its 5-day time period to 7 days consistent with the simultaneous "day is a day" amendments to V.R.C.P. 6.
Reporter's Notes-2021 Amendment
V.R.C.P. 7(b) is amended to consolidate and modernize provisions of the civil rules governing motions. Pertinent provisions of V.R.C.P. 78, which is simultaneously abrogated, are incorporated in this amendment. For clarity, captions have been added to existing paragraphs 7(b)(1)-(3) and amended or new paragraphs 7(b)(4)-(6).
V.R.C.P. 7(b)(4) is now replaced by language based on Rule 7(a)(3) of the Rules of the United States District Court for the District of Vermont and significantly narrows the reach of former V.R.C.P. 78(b)(1). The present amendment provides a procedure for responding not only to a motion for summary judgment under V.R.C.P. 56, but to all dispositive motions, including motions to dismiss for untimely service or filing of the complaint under V.R.C.P. 3, for judgment on a claim or on the pleadings under V.R.C.P. 12(b) or (c), for judgment as a matter of law under V.R.C.P. 50(a), for default judgment under V.R.C.P. 55(a) (as amended effective January 6, 2020), or any other motion that may result in dismissal of all or part of a claim without trial.
The amendment also codifies Vermont trial court precedent recognizing the trial courts' inherent discretion to allow a surreply memorandum if the memorandum would assist in clarifying the issues, particularly where the party seeking to file the memorandum is addressing new factual or legal arguments by the opposing party. See New England Youth Theatre, Inc. v. Envtl. Compliance Servs., Inc., No. 138-4-12 Wmcv, 2013 Vt. Super. LEXIS 8, 2013 WL 1866895 (Vt. Super. Ct. Feb. 26, 2013 )
(Carroll, J.); Town of Colchester v. Vt. Dep't of Taxes, Nos. S0861-10 CnC, S0933-10 CnC, S1524-10, CnC, 2011 Vt. Super. LEXIS 56, 2011 WL 8472917 (Vt. Super. Ct. Aug. 25, 2011 ) (Toor, J.); In re Town of Colchester, No. S0933-10 CnC, 2011 Vt. Super. LEXIS 13, 2011 WL 346535 (Vt. Super. Ct. Jan. 28, 2011 ) (Toor, J.).
The 30-day response period for all dispositive motions provides consistency with the existing response period for motions under V.R.C.P. 56(b) in response to a summary judgment motion. The response period for nondispositive motions, as well for motions under new V.R.C.P. 56(c)(5), responding to a Rule 56(b) response, is 14 days.
New paragraphs 7(b)(5) and (6) replace former V.R.C.P. 78(b)(1) and (2). Paragraph (5) gathers provisions concerning oral argument from both former paragraphs, placing them in a time frame related to the provisions of amended V.R.C.P. 7(b)(4). Similarly, paragraph (6) brings together provisions concerning the presentation of evidence from former V.R.C.P. 78(b)(1) and (2) that may arise outside the context of a summary judgment motion and makes clear their relationship to V.R.C.P. 56.
New V.R.C.P. 7(b)(7), carrying forward the final sentence of former V.R.C.P. 78(b)(2), is separately set forth to make clear that it applies to both nonevidentiary and evidentiary hearings. In applying paragraph (7), courts should be mindful of the guidance set forth in the Reporter's Notes to the original adoption of this language in a 1979 amendment adding V.R.C.P. 78(b): "If the motion is heard and the court finds that the losing party's grounds were frivolous, it may impose costs and other sanctions. The provisions of Rule 37(a)(4) will serve as a guide to the court in this situation. As in current practice under that rule, the appropriateness of sanctions should be determined at the hearing on the motion, rather than in a separate hearing." (Emphasis added.)
Former V.R.C.P. 7(c) is deleted. It stated, "Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used." The passage of 50 years since its promulgation has effectively eliminated from the professional toolbox of most current members of the bar even the ghosts of the terms that it sought to abolish.